IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31927 of 2007(S)
1. MS.LAKSHMI SANKAR, 33 GALLOP LANE,
... Petitioner
Vs
1. SURESH K.SURENDRANATHAN, C/O.K.S.NAIR,
... Respondent
For Petitioner :SMT.K.V.BHADRA KUMARI
For Respondent :SRI.S.ANIL KUMAR (CHERTHALA)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :24/10/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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W.P.(C) No.31927 of 2007-S
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Dated this the 24th day of October, 2008.
JUDGMENT
Ramachandran Nair, J.
This writ petition is one challenging the preliminary judgment passed
by the Family Court, Alappuzha in O.P.No.1341/2005 to the effect that it
has got territorial jurisdiction to entertain the petition filed by the husband
seeking custody of the child.
2. The basic facts leading to the dispute are the following: The
parties married on 20.8.1999 at Trivandrum. After the marriage, the
husband who is a B. Tech. Degree holder, proceeded to California,
U.S.A. to avail a job there. The wife accompanied him subsequently, in
December 1999. She is a post-graduate in M.A. Journalism and Mass
Communications. The minor son was born in the wedlock on 15.4.2003 at
U.S.A. The parties continued their residence along with the child in U.S.A.
Pursuant to the disputes with the wife, the husband came back to India and
later filed Ext.P2 original petition in October 2005 seeking for a decree for
allowing him to keep the custody of the child, invoking Sections 12 and 25
of the Guardian and Wards Act, read with Section 7 of the Family Courts
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Act. The address of the wife shown in the petition is “33 Gallop Lane,
Somersat New Jersey, U.S.A. Her parents are there in New Jersey, U.S.,
from the year 2000. Initially the wife filed objections, Ext.P3, to the main
petition. Thereafter, by way of an amendment she sought to challenge the
territorial jurisdiction of the Family Court and the amendment was allowed
on payment of cost Rs.1,000/- which was paid. Ext.P5 is the said
amendment petition. Thereafter, the question of jurisdiction was heard as a
preliminary issue. Ultimately, Ext.P8 order has been passed by the Family
Court overruling the objections filed by the wife challenging the
maintainability of the petition before the Family Court at Alappuzha.
3. One more thing which is to be mentioned is that the wife had
obtained Ext.P1, an order passed by the Superior Court of New Jersey by
which the custody of the minor child was ordered in her favour.
4. In Ext.P8 order, the Family Court found in favour of the husband
regarding the maintainability of the petition, mainly for the reason that
“ordinarily the permanent residence of a Hindu minor is the residence of his
father, i.e. the father’s fixed abode or house. Though the child was born in
2003 at U.S.A., since his parents were residing there at that time, the
permanent residence or ordinary residence of the child cannot be taken as
California in U.S.A., where the parents were residing along with the child or
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New Jersey, where the children is now residing along with her mother, the
respondent and herself resides along with her parents as the child has to
move along with his parents till his attaining majority.” Ultimately, the
conclusion reached is that for considering a petition for guardianship, the
permanent residence of the father has to be taken as the ordinary residence
of the minor which is within the jurisdiction of the Family Court, Alappuzha
and hence, that court has territorial jurisdiction to entertain the petition. The
above finding is under challenge in this writ petition.
5. We have heard Smt. K.V. Bhadra Kumari, learned counsel for the
petitioner, Shri S. Anil Kumar and Shri.T.R.Mohanakumar, learned counsel
for the respondent and Shri V. Philip Mathews, learned counsel for the
impleading petitioner.
6. Learned counsel for the petitioner contended that the wife and
the child are residing in New Jersey in U.S.A. They are therefore not settled
in India. Even going by the averments in para 27 of Ext.P2 filed by the
husband, in August 2004 both the husband and wife got the green card
approved. The child was born in U.S.A. and is a citizen of that country.
The husband alone came back to India and has filed the petition seeking
guardianship of the minor. Even before the said petition was filed, the wife
moved the Superior Court of New Jersey which has passed Ext.P1 order
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granting custody of the child to the mother. That order is still in force.
Apart from that, the welfare of the child has to be considered. For the
purpose of considering the jurisdiction of the Family Court, what is required
under Section 9 of the Guardian and Wards Act, 1890 is to find out the
place where the child ordinarily resides. Herein, the child never resided
within the jurisdiction of the Alappuzha Court and even now the child is
not “ordinarily residing within the jurisdiction of that court.” It is also
pointed out that even in Ext.P2 petition filed by the father, no proper
averments have been made as to how the court at Alappuzha will get
jurisdiction and the averments contained in para 50 are not sufficient to
hold that the Family Court, Alappuzha will have jurisdiction to decide the
matter. Learned counsel for the petitioner relied upon the principles stated
by the Apex Court in Smt. Surinder Kaur Sandhu v. Harbax Singh
Sandhu and another {(1984) 3 SCC 698}.
7. Learned counsel appearing for the husband/first respondent mainly
contended that the child being a minor and the father being the natural
guardian, the child will have to follow the residence of the said natural
guardian and that alone is the true test to decide the jurisdiction of the court.
The respondent is a native of Mannar, within Alappuzha District. His
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permanent address is that of the family house in that village. It is also
contended that the child was removed by the mother from their house at
California and such acts of the mother cannot be considered for the purpose
of considering the jurisdiction of the Family Court at Alappuzha. It is
submitted that the finding rendered by the Family Court that the permanent
residence of the father has to be taken as ordinary residence of the minor, is
perfectly justified. Reliance is also placed on the decisions of this court in
Chandy v. Mary Baneena (1988 (1) KLT 611) and Hareendran Pillai v.
Pushpalatha (2007 (1) KLT 842) and that of the Delhi High Court in
Ramjilal Yadav v. Dalip K. Yadav (1999 (1) HLR 237).
8. The petition filed by the father as per Ext.P2 is under the Guardian
and Wards Act. Section 9(1) of the said Act provides that “if the
application is with respect to the guardianship of the person of the minor, it
shall be made to the District Court having jurisdiction in the place where the
minor ordinarily resides.” As far as the Family Courts Act is concerned,
Section 7 of Chapter III concerns with jurisdiction of the court. The other
provision that is relevant is Section 6 of the Hindu Minority and
Guardianship Act, 1956. The said provision along with the proviso, is
extracted below:
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“6. Natural guardians of a Hindu minor.- The natural guardian of
a Hindu minor, in respect of the minor’s person as well as in respect
of the minor’s property (excluding his or her undivided interest in
joint family property) are.-
(a) in the case of a boy or an unmarried girl – the father, and
after him the mother.
Provided that the custody of a minor who has not completed
the age of five years shall ordinarily with the mother;
9. The facts pleaded by the parties show that the marriage was held in
Trivandrum on 20.8.1999. The husband proceeded to California to take up
a new job after the marriage. The wife also accompanied him there. The
child was born in the year 2003. Ext.P1 is the certificate issued by the
Superior Court of New Jersey wherein the sole legal and physical custody of
the child was awarded to the petitioner/wife. This order is passed in
October 2005. According to her, she received summons to appear before
the Family Court, Alappuzha on 6.12.2005. Even in Ext.P2 petition filed by
the husband under Sections 12 and 25 of the Guardian and Wards Act, her
address in U.S.A. alone is shown. In para 50 of Ext.P2 regarding the cause
of action, what is stated is that “the cause of action of the OP arise in the
above mentioned circumstances and on 20.8.1999, the date of marriage, and
on 1.10.2004, the date the counter petitioner deserted the petitioner
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continuously thereafter, at Mannar Village, which is within the jurisdiction
of this Hon’ble Court.” If the case of the husband is accepted, desertion by
the wife happened in U.S.A. and not in this country. That happened in
California. No cause of action arose within Mannar Village, as shown in
para 50 of Ext.P2. She continues her residence along with her child at New
Jersey which fact is not disputed by the respondent. Her parents are residing
there. It is submitted that she is having a job there. Therefore, it can be
conclusively held that at no point of time the child was ‘ordinarily residing’
within the jurisdiction of the Family Court, Alappuzha.
10. Then, the question is whether, for the purpose of deciding the
jurisdiction what is relevant is only the permanent residence of the husband
in India, as contended by the learned counsel for him. It is further argued
that the place of residence of the mother is by compulsion.
11. Going by Section 9 of the Guardian and Wards Act, the place of
ordinary residence of the child is the determinative factor. Herein the same
has to be found out from the facts shown above. It is true that the father is
the natural guardian, going by Section 6 of the Hindu Minority and
Guardianship Act. But going by the proviso, in a case where the child is
below the age of 5, the mother is the natural guardian. It is well settled that
while granting custody of the child, the paramount consideration is the
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welfare of the minor. The court will have to consider various aspects to
find out–after referring to the competing claims of the father and the
mother–as to who among them should be appointed as a guardian.
12. Bearing in mind this aspect let us analyse the principles stated in
the various decisions relied upon by either of the parties, rendered by this
court and the Apex Court. In Chandy’s case (supra), the meaning of the
word “resides” in Section 9 of the Guardian and Wards Act, 1890 came up
for consideration. It was held in para 5 as follows:
“The word “reside” is by no means free from ambiguity as the word
is capable of a variety of meanings according to the circumstances to
which it is made applicable and the context in which it is found.
“Residence” has connotation in law. It is not meant to take in places
of temporary stay, however long the stay may be. Though a casual
residence is also residence in a way, such transitory residence is not
meant to be included within the purview of residence in law, unless a
particular context justifies its inclusion. The residence must answer
a qualitative as well as quantitative test and the two elements of
factum at animus must concur. Facts and circumstances of each case
must be looked into to ascertain whether a person can be said to
ordinarily reside at a given place. A permanent residence is the place
where a person is expected to be ordinarily found. The place where
mere physical presence is found may not necessarily be the place
where he ordinarily resides. The acceptable attributes of the
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expression “resides” in contexts like this are, to make an abode for a
considerable time; to dwell permanently or for a length of time; or to
have a settled abode for a time etc. It is true that the place of
residence at the time of filing of the application under the Act is not
decisive to ascertain the place of ordinary residence, as it would be
easy to move the minor children from one place to another and from
one jurisdiction to another. The expression “ordinarily resides”
connote a regularly settled home and not a place of study where the
children are obliged to dwell by force of circumstances or
compulsion of parents’ employment.”
Hence, the place of temporary stay has to be excluded, but the place where
a regularly settled home is there will satisfy the meaning of the expression
“ordinarily resides”. The facts of the said case show that the parents were in
Dubai and the children were brought to Kerala by their mother and
admitted in a school in Ernakulam District. The husband filed a petition
under the Guardian and Wards Act before the court at Ernakulam and the
mother contended that the ordinary residence of the children is in Dubai and
hence the District Court, Ernakulam has no jurisdiction. In the light of the
above facts, it was held by this court that it is difficult to hold that the
ordinary residence of the minor children at the time of filing of the petition
was at Dubai. In fact, when they were brought back to Kerala, they were
residing with their maternal grandmother. It is in these circumstances, the
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above conclusion was arrived at by this court. The main question
considered by this court was whether a place of temporary stay, however
long the stay, can be considered for the purpose of considering the meaning
of the term “residence”. The residence must answer a qualitative as well as
quantitative test and the two elements of factum at animus must concur.
Therefore, that test has to be applied to the facts of this case. In
Hareendran Pillai’s case (supra) also, the same principle was reiterated.
After referring to Section 6 of the Hindu Minority and Guardianship Act
and the decisions of the Apex Court in Rosy Jacob v. Jacob
Chakramakkal {(1973) 1 SCC 840} and Jajabhai v. Pathankhan {(1970)
2 SCC 71) and the decision of this court in Chandy v. Mary Baneena
(1988 (1) KLT 611), their Lordships examined the scope of Section 9 of the
Guardian and Wards Act. The facts of the said case show that the marriage
occurred in Alappuzha District and they were also residing after the
marriage along with the minor, within the jurisdiction of the Family Court,
Alappuzha. The child was taken away from Alappuzha by the husband to
Bahrain. Therefore, mere residence of the child at Bahrain could not be
considered as a factum which will deprive the Alappuzha court of its
jurisdiction. It is in the above factual situation the said case was decided to
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hold that the Family Court, Alappuzha has got jurisdiction. The facts of the
present case show that they are totally different. Again, their Lordships in
the above said decision, stated that “though the father is the natural guardian
of the minor above five years, on that ground alone he cannot have any
preferential claim since the paramount consideration is the welfare of the
minor.” Therefore, the contention raised by the learned counsel for the
husband that for the purpose of considering the territorial jurisdiction, the
child should be considered as ordinary resident within the jurisdiction
where the permanent residence of the father is situated, cannot be accepted.
13. It may be mentioned herein that going by Ext.P1, the wife has
secured custody of her child from the Superior Court of New Jersey. We
will now consider the principle stated by the Apex Court in Surinder
Kaur Sandhu’s case (supra). The facts of the above case shows that the
parents of the child who were Indian citizens, settled in England after the
marriage and the child became a British citizen by birth. The child was
brought to India by the father. Meanwhile, the mother obtained an order
from a court in England directing her husband to deliver custody of the
child to her. In the above factual situation, the relevant questions were
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examined. After analysing the detailed facts, it was held in para 10 as
follows:
“The modern theory of Conflict of Laws recognises and, in
any event, prefers the jurisdiction of the State which has the most
intimate contact with the issues arising in the case. Therefore, in
matters relating to matrimony and custody, the law of that place
must govern which has the closest concern with the well-being of
the spouses and the welfare of the offsprings of marriage.
Ordinarily, jurisdiction must follow upon functional lines and is
not attracted by the operation or creation of fortuitous
circumstances such as the circumstance as to where the child,
whose custody is in issue, is brought or for the time being lodged.
In the present case the facts that the child is a British
citizen and that the matrimonial home of the spouses was in
England, establish sufficient contacts or ties with that State in
order to make it reasonable and just for the courts of that State to
assume jurisdiction to enforce obligations which were incurred
therein by the spouses.”
14. Therefore, the principle is well settled that in matters relating to
matrimony and custody, the law of that place must govern which has the
closest concern with the well-being of the spouses and the welfare of the
offsprings of marriage. Learned counsel for the respondent also relied upon
the observation in the above judgment that “ordinarily, jurisdiction must
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follow upon functional lines and is not attracted by the operation or creation
of fortuitous circumstances,” and then contended that merely because the
child was residing along with the mother in U.S.A., the right of the father to
institute a suit in India seeking custody, is not taken away, as the child is
presumed to be ordinarily residing with the father, he being the natural
guardian. We may point out herein that in the above judgment, the Apex
Court further laid down that Section 6 of the Hindu Minority and
Guardianship Act cannot supersede the paramount consideration as to what
is conducive to the welfare of the minor. It has also been held that “it is the
Court’s duty and function to protect the wife against the burden of litigating
in an inconvenient forum which she and her husband had left voluntarily.”
Judged in the light of the above principles, we would like to point out
herein that the spouses had set up their matrimonial home in U.S.A., the boy
is a U.S. Citizen as he was born in that country and he holds a U.S.
Passport, a copy of which has been produced herein as Ext.P4. By merely
choosing to come back to India after leaving the family at U.S., the father
cannot claim that the jurisdiction in regard to the dispute regarding custody
can only be before Indian courts and the U.S. Court has no jurisdiction.
The following observation made in para 10 of the judgment in Surinder
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Kaur Sandhu’s case (supra) that “the fact that the child is a British citizen
and that the matrimonial home of the spouses was in England, establish
sufficient contacts or ties with that State in order to make it reasonable and
just for the courts of that State to assume jurisdiction to enforce obligations
which were incurred therein by the spouses”, is apposite to the facts of this
case. This is not a case where the wife had taken the child out of this
country for a casual residence or by compulsion as contended by the learned
counsel for the respondent and the impleading petitioner. Only on two
occasions she came back to India; first time in November 2003 and later in
December 2004. Both were casual visits. Admittedly going by the
pleadings of the parties, she went back thereafter. On his return to U.S., the
husband worked there for another 10 months before he came back to India,
after their separation.
15. Another argument raised by learned counsel for the respondent
and the impleading petitioner is that the question of jurisdiction was not
raised in the pleadings of the petitioner, viz. Ext.P3 and only at a later stage
after attending counselling alone, she raised this plea by way of an
amendment and therefore since the said issue was not raised at the initial
stage, the objection has to be rejected in toto. We are afraid, the said
argument cannot be accepted at this point of time, in view of the fact that
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the court below has, by the preliminary judgment, considered the objection
regarding jurisdiction after allowing her to amend the pleadings. It is
reported that the amendment was allowed after hearing the objections of the
respondent also on payment of cost Rs.3,000/- which was received by the
husband. The said order has become final. There was no change against the
order allowing amendment of the pleadings to incorporate the specific
objection regarding jurisdiction. Further, any question of jurisdiction goes
to the root of the matter as it affects the very power and authority of the
court to decide the dispute between the parties. Apart from that, such an
objection has not been seen raised before the trial court which has therefore
gone into the dispute regarding jurisdiction in detail in the impugned order.
16. It is pointed out by the learned counsel for the respondent that no
sanctity can be attached to Ext.P1 order passed by the Superior Court of
New Jersey, as his client was not heard before passing that order. He also
relied upon the findings rendered by the Family Court in Ext.P8 order, to
the effect that the said order is not binding on the respondent. Ext.P8 order
shows that a copy of Ext.P1 order has been produced before the Family
Court. The Family Court was of the view that the order passed by the
Superior Court of New Jersey has nothing to do with the present case while
considering the question of territorial jurisdiction. The main reason for
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coming to the said conclusion is that no notice appears to have been served
on the husband prior to the passing of the order. We are afraid, the said
view of the Family Court cannot be said to be correct. Ext.P1 is a copy of
the order passed by the Superior Court of New Jersey, and the validity of
the said order cannot be decided by the Family Court at Alappuzha, as the
said court is not sitting in appeal over it. It was upto the husband to
challenge it on various grounds available to him including the ground that
he was not heard. Therefore, the order cannot be ignored as such by the
Family Court at Alappuzha as is now done. We have referred to Ext.P1
order of the Superior Court of New Jersey only to show that the wife had
approached the forum available in U.S. to establish her custody of the child.
17. It was vehemently contended by learned counsel for the husband
that the only forum that can have jurisdiction is the court at Alappuzha,
since the father has got permanent residence there. It is submitted that the
father being the natural guardian, the ordinary residence of the child can
only be presumed to be that of the father. Learned counsel for the
petitioner, in answer to the said contention, pointed out that the father is
now employed in Bangalore and is residing there and therefore, he will be
presumed to be an ordinary resident of Bangalore and not within the
jurisdiction of the Alappuzha Court. Within Alappuzha district he may
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have permanent residence, but the question is whether the same will satisfy
the ingredients of Section 9 of the Guardian and Wards Act. The Section
expressly provides that the court having jurisdiction is the court within
whose jurisdiction the child ordinarily resides. We are of the view that the
claim of the father for permanent custody under Section 6 of the Hindu
Minority and Guardianship Act cannot be the true test at all. It is stipulated
under the proviso to the said Section that the mother is having a legal right
of custody of a minor who is below the age of five years. The Apex Court
in Surinder Kaur Sandhu’s case (supra), in para 9 held that Section 6 of
the Hindu Minority and Guardianship Act, 1956 cannot supersede the
paramount consideration as to what is conducive to the welfare of the
minor. Therefore, the plea that father being the natural guardian, his
residence permanently at one place is the criteria for deciding the
jurisdiction, cannot be accepted. Herein, at the time of filing of Ext.P2 by
the father in 2005, the child was only 2 years and 6 months of age.
Therefore, even going by the proviso to Section 6, the mother alone was
entitled to custody of a minor child below the age of five years. If that fact
is accepted, the mother who was residing in U.S. at that time along with the
child, is justified in claiming that the Family Court at Alappuzha has no
jurisdiction to decide the dispute regarding custody raised by the petitioner.
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Further, no part of the cause of action arose within the jurisdiction of
Family Court, Alappuzha.
18. The reasoning adopted by the Family Court that the permanent
residence of the father has to be taken as the ordinary residence of the minor
for the purpose of deciding jurisdiction of the Family Court at Alappuzha,
is therefore not correct. The said reasoning is not supported either by the
statutory provisions or by the principles stated by the Apex Court in
Surinder Kaur Sandhu’s case (supra), and by this court in Chandy’s case
(supra) and Hareendran Pillai’s case (supra). Reliance placed by the
learned counsel for the respondent on the decision in Ramjilal Yadav’s
case (supra) is, therefore, not correct. There, the contest for custody of the
child was between the father and maternal grandfather. The finding
regarding jurisdiction of the court was entered into in the peculiar facts of
the case. This is evident from the finding rendered by the court in the
following words:
“But in a case like the present one, it is difficult to accept the
proposition that the residence of the maternal grandfather who
happened to have just temporary custody of the child should be the
place of ordinary residence of the mother.”
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The facts show that the child was residing along with the mother in the
permanent residence of the father. But on a temporary visit to the residence
of the maternal grandfather in Nainital, the mother died and the child was
retained by the maternal grandfather. It is only in the above circumstances,
it was held that the place of residence of the father is relevant. The facts of
the said case are totally different from the facts of this case. But, while
discussing the provisions of Section 6 of the Hindu Minority and
Guardianship Act, 1956, the court also observed as follows:
“Moreover a mother is supposed to have the custody of a child who
has not completed the age of 5 years under Section 6(1) of the Hindu
Minority and Guardianship Act, 1956. Therefore, while deciding the
question of ordinary residence of the minor so long the child is of 5
years of age, it has to be deemed that he is residing with the mother
and the residence of the mother would be indicative of the ordinary
residence of the child also.”
This also supports the view taken by us on the facts of this case.
For all these reasons, we quash Ext.P8. We hold that the petition
filed by the father, Ext.P2 seeking to appoint him as the guardian of the
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minor Rishikesh, filed before the Family Court, Alappuzha is not
maintainable for want of territorial jurisdiction.
The writ petition is allowed as above. No costs.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/